STATE OF HIMACHAL PRADESH Vs. SHRI SURESH CHAND

JUDGEMENT

(1.) This is a revision filed by the State against the order dated 24th November, 1971 of the Sub -Divisional Magistrate, Theog, whereby he has convicted the accused Suresh Chand under Sec. 116 of the Motor Vehicles Act and has sentenced him to pay a fine of Rs. 10. The only ground upon which the petition has been filed is that the sentence awarded by the learned trial Magistrate is rather inadequate and the offence, according to State, being of a serious nature, should have been punished in a more effective manner. It is stated, that as provided in Sec. 116 of the Motor Vehicles Act, upon first conviction the sentence can extend upto six months imprisonment with a fine of Rs. 500. It is submitted by the State that the accused had admitted his guilt and was found driving his vehicle in a reckless manner and as such some exemplary and deterrent punishment should have been awarded.

(2.) The learned Counsel for the Respondent -accused contended in the foremost that the State having filed a revision for enhancement of sentence under Sec. 439 of the Code of Criminal Procedure, has enabled the accused to plead against his very conviction, what to say of showing to the Court that the sentence awarded was sufficient. The learned Counsel relied upon Sub -section (6) of Sec. 439 of the Code of Criminal Procedure. It is manifest, under this provision the accused is entitled to show that his very conviction was defective and that he should have been acquitted of the offence, rather than having been convicted of the same. The learned Counsel relied upon Sec. 131 of the Motor Vehicles Act which lays down very clearly, that no person has to be prosecuted for an offence punishable under Sec. 116, unless he was warned at the time the offence was committed that the question of prosecuting him would be taken into consideration and further that within. 14 days from the commission of the offence a notice specifying the nature of the offence and the time and place of its commission is served upon him, and that within 28 days of the commission of the offence, a summons for the offence was also served on him.

(3.) I have perused the record of the trial Magistrate and I find that previous warning as required under Clause (a) of Sec. 131 was never administered upon the accused and that by itself was a fatal defect to the prosecution. It appears that on 19 -6 -1971 a report was submitted that the accused was driving recklessly and perhaps made some accident and on 24th November, 1971, the accused was produced and a plea of guilt was recorded. He was straightaway convicted and sentenced to pay a fine of Rs. 10, in default, to undergo simple imprisonment for one day. Besides this, there is no evidence on record to indicate that a notice or a summons as required under Clause (b) and (c) of Sec. 131 were 'at all served upon the accused with in the prescribed time.